January 4, 2021
On Dec. 14, Judge Nancy Firestone of the U.S. Court of Federal Claims ruled decisively that the U.S. government violated the Fifth Amendment rights of three landowners whose properties in the Missouri River basin became vulnerable to floods after the U.S. Army Corps of Engineers revised its management of the river to comply with environmental laws. The ruling by Judge Firestone, who has been overseeing takings claims by about 400 property owners along the river since 2014, will total more than $10 million for the three bellwether plaintiffs.
But for the lawyers representing the Missouri River plaintiffs – Dan Boulware of Polsinelli and Benjamin Brown of Cohen Milstein Sellers & Toll – Judge Firestone’s decision was a challenge as well as a win. The plaintiffs’ lawyers told me Monday that they had heard from dozens of additional landowners after launching the Fifth Amendment mass action with about 400 plaintiffs in 2014, but had held off on filing new claims until Judge Firestone clarified the scope of the case. The judge’s Dec. 14 ruling effectively set a claims deadline of Dec. 31. So Boulware and Brown had to figure out how to protect the interests of other Missouri River property owners – not just the dozens who had already contacted them but hundreds of others who might have valuable claims based on Judge Firestone’s decision.
Their solution? An unusual – but not unprecedented – Fifth Amendment class action in the Court of Federal Claims. The Dec. 30 complaint lists more than 60 named plaintiffs who own allegedly flood-prone land along the river in Kansas, Nebraska, Iowa and Missouri. If the class is certified, Boulware said, hundreds of other class members will also have an opportunity to assert claims. (Property owners who have already brought individual suits in the mass action, known as the Ideker case, are excluded from the class.)